The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this action Andre Gladney ("Plaintiff") is alleging that Wegmans Food Markets ("Defendant") discriminated and retaliated against him in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Now before the Court is Defendant's motion for summary judgment [#38], and Plaintiff's cross-motion [#39] for summary judgment. For the reasons that follow, Defendant's application is granted, Plaintiff's application is denied, and this action is dismissed.
Unless otherwise noted, the uncontested facts of the case are set forth in Defendant's Statement of Undisputed Facts submitted pursuant to Local Rule 56.1, to which Plaintiff did not file a counter-statement. See, Local Rule of Civil Procedure 56(a)(2) (Indicating that those portions of the moving party's statement of facts that are not specifically denied are deemed admitted). Although the Court will discuss those facts further below, they were accurately summarized by Defendant as follows:
Gladney alleges that Wegmans discriminated against him on account of his alleged disability (arthritis in his ankle), although he produced no evidence that he is substantially limited in any major life activity and actually admits that he is not substantially limited. Even if Gladney were disabled within the meaning of the ADA, his principal complaint is that Wegmans discontinued his short-term disability benefits after he admittedly reached the maximum benefit period (26 weeks) provided for by New York State law. Gladney also alleges that Wegmans retaliated against him by making phone calls to his health insurance carrier and a legal aid society, although he admits he has no evidence that anyone at Wegmans contacted those entities. Finally, Gladney alleges that Wegmans retaliated against him with respect to certain withdrawals from his 401(k) account, although he admits that all of the withdrawals he requested were approved and paid.
Def. Memo of Law [#38-30] at 1.
Beginning in May 2007, Plaintiff worked in Defendant's Bakery Department. Prior to that, Plaintiff had worked in Defendant's Meat Department for several years. On or about June 29, 2007, Plaintiff informed Defendant that he would be out of work due to pain in his right foot. Subsequently, Plaintiff applied for short-term disability benefits, at which time his podiatrist, Michael Giordano, D.P.M. ("Giordano"), indicated that the medical condition was not work related.*fn2 Plaintiff's disability claim was approved, and he received 26 weeks of disability benefits, from July 2007 through January 5, 2008.*fn3 In or about August 2007, Plaintiff had surgery on his foot. It was Defendant's policy to maintain employees' employment and benefits for up to six months, during periods of disability. In this regard, Defendant kept its employees' jobs open and continued to provide their benefits, such as health insurance, but did not pay regular wages. In October 2007, Defendant notified Plaintiff that it would continue to maintain his employment and benefits for another three months, until January 2008. Actually though, because Plaintiff was not able to return to work until February 2008, Defendant maintained Plaintiff's position and benefits for an additional month, for a total of seven months.
As previously mentioned, Plaintiff received six months, or 26 weeks, of disability payments, which ended on January 5, 2008. On or about January 9, 2008, Plaintiff telephoned Defendant to complain about the fact that his payments had stopped, and he spoke with a "benefits analyst" named Donato ("Donato"). Donato advised Plaintiff that his payments had stopped because he had received all of the benefits to which he was entitled.*fn4 Donato further advised Plaintiff that he could file an appeal with the New York State Worker's Compensation Board, Disability Benefits Bureau ("Worker's Comp Board"). Plaintiff was extremely upset and offended by his conversation with Donato, since he maintains that Donato was rude to him. In fact, as discussed further below, Plaintiff admits that his conversation with Donato was a primary motivating factor behind him filing complaints against Defendant and eventually commencing this action.*fn5 In any event, Plaintiff filed an appeal with the New York State Workers' Compensation Board, Disability Benefits Bureau, which denied the appeal [#38-22], because Plaintiff had received a full twenty-six weeks of benefits. Nevertheless, Plaintiff apparently believes that he was entitled to receive unlimited disability payments, and that the termination of payments after twenty-six weeks was discriminatory. Pl. Deposition [#38-13] at 95-96 ("Q. What about the termination of your benefits after six months? Are you claiming that's discriminatory? A. Yeah, I didn't feel that was right either. I don't understand how they could have run out, that's what gets me. I paid for everything.") (emphasis added); see also, id. at 84 ("I don't understand how benefits can run out[.]").
At around this same time, Plaintiff filed a Worker's Compensation Claim, alleging that his foot injury was work related, even though he and Giordano had previously indicated that it was not work-related. The Worker's Comp Board dismissed the claim [#38-23]. In doing so, the Worker's Comp Board indicated that Plaintiff had not submitted "prima facie medical evidence" to support the claim," and that "[u]pon submission of [such evidence], the case will be evaluated to determine further Board action." Id. However, Plaintiff never submitted such evidence. As to that, at deposition Plaintiff stated that he never got around to doing so. Pl. Dep. 17 ("I got the papers that the [Workers' Compensation] judge told me to get, but I didn't make it back down there because I had my second surgery and I was laid up for awhile after the second one[.]"); see also, id. at 103-104.*fn6
On February 4, 2008, Giordano cleared Plaintiff to return to work half days, and Defendant accommodated that restriction and allowed Plaintiff to return to work. Plaintiff worked half days until March 26, 2008, when Giordano indicated [#39] that Plaintiff was completely unable to work, due to "nerve pain."
On March 27, 2008, Plaintiff filed an employment discrimination complaint [#38-7] against Defendant with the New York State Division of Human Rights ("NYSDHR"), alleging discrimination on the basis of disability. Plaintiff stated that he was disabled due to arthritis. When asked to write out the description of his complaint, Plaintiff attached four pages of handwritten notes, divided up into dated entries covering the period September 20, 2007 through January 23, 2008. The notes, frankly, do not describe instances of disability discrimination. The notes do, however, describe Plaintiff's conversation with Donato, following the termination of Plaintiff's short-term disability payments after twenty-six weeks: "Talked to Dinado [Donato] about the rejection papers, he was kind of rude and loud talking, said what I was trying to say was irrelevant he told me to call the state call social security [sic]." ([#38-7] at 5). The notes also express frustration with the process of making a hardship withdrawal from Plaintiff's 401(k) account. Subsequently, Plaintiff told a NYSDHR representative that Defendant "intentionally tries to bring him down." ([#38-8]) When asked to explain, Plaintiff stated that his health insurance provider had recently*fn7 refused to pay for physical therapy treatment, and he suspected that Defendant was to blame [#38-8]. As to this suspicion, Plaintiff alleges that his health insurance provider refused to pay for certain medical treatments because he had a Worker's Comp claim pending, and he contends that Defendant told his insurance provider to withhold payment, though he has no personal knowledge about that. See, Pl. Dep. at 125-128. Plaintiff also told the NYSDHR representative that Donato was "rude and loud and would not let him talk," and told him that "his life was irrelevant." ([#38-8]) Plaintiff further stated that Donato "was a nasty person to everyone." Id. On July 1, 2008, NYSDHR dismissed Plaintiff's complaint, finding "no probable cause too support the allegations of the complaint." [#38-9]
On April 29, 2008, Plaintiff resumed working half days. Again, Defendant accommodated Plaintiff's half-day restricted schedule. Plaintiff continued to work half days until July 30, 2008, when Giordano indicated [#38-24] that Plaintiff was completely unable to work, and needed further surgery. Defendant indicated that it would again hold Plaintiff's position open for him, and maintain his benefits, for a period of six months.
On August 24, 2008, while Plaintiff was out of work, he applied for a "hardship" distribution from his 401(k) savings plan account. More specifically, Plaintiff applied to withdraw $969.00, which was the maximum that he could take pursuant to the terms of the plan. See, Pl. Dep. [#38-13] at 136. Approximately two weeks later, Plaintiff received the requested distribution [#38-25]. Nonetheless, he believes that it was discriminatory for there to be a limit on the amount that he could withdraw. See, Pl. Dep. at 25-26 ("[H]ow can you tell me only nine hundred and sixty-nine dollars is available, and that's before taxes, if they know they're not going to pay me? . . . Why would I have to show ...